A Discussion Site for Good Governance and Corruption in Public Life Issues in the British Overseas Territory of Anguilla in the West Indies, moderated by Don Mitchell CBE QC, of PO Box 83, Anguilla, British West Indies. Email me with your comments and contributions at: idmitch@anguillanet.com.

28 March, 2008

What are the Commissions and Commissioners that Are Recommended for our New Constitution?During the six-month public consultation exercise in early 2006, members of the public recommended a number of Commissions for our new Constitution.People in Anguilla expressed concern about the need to increase public participation in government.Too many matters were being left to the Governor’s or the Ministers’ discretion.A number of Commissions and Commissioners were urged.The Constitutional and Electoral Reform Commission adopted many of these submissions and made them recommendations in their final Report of August 2006.These Commissions were designed to do three things.

The first was to democratize government.A number of matters of internal self-government had to be taken out of the arbitrary control of one person and put into the hands of competent members of the public. Because you are the Minister of Planning, should not mean you have the power to approve planning applications. Because you are the Minister of Immigration should not mean that you or your officers make the decision on work permits.

The second was to increase transparency.Anguilla is still governed like the UK was in the nineteenth century, secretly and arbitrarily.The UK has moved on, and introduced institutions and processes designed to open up government.We in Anguilla have no less right to be treated with respect and fairly.The public have to be given a right to information if they are to be able to make informed choices.Transparency is a process intended to make government fairer and society more just.

The third objective was to increase integrity and accountability in public office.When persons in power do not have to answer to an independent watch-dog, they begin to feel they can get away with anything.The downward spiral begins with small abuses.It grows to major problems.We do not have to give examples.We know bad behaviour when we see it.

I propose to look at some of these recommended Commissions and Commissioners over a series of posts in the coming days.The Chief Minister's Committee is working on a draft of the proposed new Constitution. It is my hope that this Committee will ensure that these recommendations are included in any new Constitution for Anguilla.

No matter how much internal self-government we get, if we do not have the checks and balances in place, no progress will have been made.The more self-government there is without the checks and balances, the more abuse will be heaped on us.The Englishman may not be our preferred leader.But, at least we know that he has no private agenda in Anguilla.The risk of modernization without democratization is that we will turn out like Antigua or St Vincent after they went into independence. The locally-grown leaders will abuse us even more than the colonial ones did.

23 March, 2008

Noise in Sandy Ground.A few weeks ago there was confusion in Sandy Ground.The police were closing down the entertainment spots.That was the rumour.There were some meddlesome visitors who had complained to the police about the music.So it was being said.The police had, in lightning fast style, moved to visit all the entertainment spots and to tell them they were not permitted to play amplified sound without a permit from the Commissioner of Police.That was what I heard.I carried out an investigation.This is what I learned.

Sandy Ground is a village with several hundred residents trying to get a good night’s sleep.There are also several business places that provide entertainment for the late-night crowd.Some of them play amplified music until three or four in the morning.Not all of the entertainment spots are enclosed.The noise level in Sandy Ground and echoing down to SouthHillVillage was intolerable.The hours of duration were unreasonable.

About forty residents got together and wrote a petition to the Commissioner of Police.The vast majority of petitioners were ordinary Sandy Ground residents.This is what the petition read, in its entirety:

“We, the undersigned, respectfully request that the authorities in Anguilla enact and enforce laws with regard to reasonable and specific levels of noise and reasonable and specific hours of operation in Sandy Ground to enable residents, businesses, and visitors to exist/function/live in harmony.”

From any reading, the petition asked for laws to be enacted.It asked that the laws be enforced.It asked that these laws set reasonable and specific levels of noise and reasonable and specific hours of operation for Sandy Ground.It asked that this be done so that residents, businesses, and visitors could exist and function and live in harmony.Not unreasonable requests, I hope you will agree!

The police Commissioner received the petition.He knew there was already a law on the books.It is called the Sound Amplification (Restriction) Act.

The entire Act is one and a half pages long.It consists of three sections.One imposes a fine of $2,000 for breaking the terms of a permit.The other two sections state,

Restriction on amplification of sound

1. Any person who, except under the authority and in accordance with the terms and conditions of a permit issued under section 2—

(a) operates, or causes or allows to be operated, any amplifier, loud speaker or any other device so as to amplify the sound made by the playing of any musical instrument or human voice or so as to amplify any other sound; or

(b) plays or operates, or causes or allows the playing or operation of, any record player, radio, television set, tape cassette player or other device designed or adapted for the transmission of sound;

from any premises in a manner which, by reason of the causing of noise, unreasonably disturbs or annoys any other person dwelling or working in neighbouring premises commits an offence and is liable on summary conviction to a fine of $2,000.

Commissioner’s power to issue permits

2. (1) The Commissioner of Police or any other police officer not below the rank of Deputy Commissioner of Police authorised by the Commissioner of Police may, on application by any person, issue a permit, subject to such terms and conditions as he may think fit.

(2) Every application for a permit shall be in writing addressed to the Commissioner of Police within a reasonable period of time before the commencement of the amplification and transmission of sound and shall specify—

(a) the date of commencement of the amplification and transmission of sound;

(b) the place on which such amplification and transmission are to be carried out;

(c) the name and address of the person who is in charge of such place for the time being; and

(d) the duration of and the necessity for the permit.

(3) Every application for a permit concerning such a place shall be accompanied by a signed statement by the person in charge of the place for the time being giving his consent for the use of the place for such amplification and transmission.

At a first glance, the law appears to be of general application.It seems to prohibit any amplification of sound from any premises which “unreasonably disturbs any other person” without a permit.It does not appear to be a general licensing law.What does this law really say?It does not require every person to obtain a permit before amplified music is played.A permit is only required for you to play amplified sound that unreasonably disturbs or annoys another person.If you are not planning to be unreasonable, no permit is required.So, in my opinion, a permit is not required for playing amplified music in an enclosed space, when the music cannot be easily heard outside.It is only if the amplified noise that you are making is unreasonable that you need to get a permit.

The Act is a mere skeleton of a law.It contains no detailed regulations or specifications of any kind.Nor does it provide for regulations to be made.

It is child’s play to test the level of amplified sound.Decibel counters can be picked up in any electronic shop.If the House of Assembly had intended to restrict business places that provide entertainment by amplified music to a reasonable level of noise and to reasonable hours, it would have provided for detailed regulations to be made.

Section 2(2)(a) and (d) suggest something else.Note that they do not cover existing restaurants and bars that play music every day.You have to submit the date when you will commence the sound, the duration of the amplified sound, and the necessity for the permit.This suggests that the House of Assembly intended it as a police permit for occasions such as political meetings and other sporadic and one-off events.There is nothing in the Act that suggests it is meant to be a general licensing law regulating the playing of amplified music.

So, what did the Commissioner do when he received the petition?He did not call a meeting as requested.He did not ask for regulations to be made, as requested.He did not send down an officer to warn the business premises that there were complaints and that they were being unreasonable.He got tough.He decided to implement the law.On the Friday night he sent a police officer down to Sandy Ground just as the bands were starting up.The officer’s instructions were clear.He told each manager that if amplified music was played that night, or any other night, without a permit, the manager would be prosecuted.The bands were sent home.No music was heard in Sandy Ground for several days.

Over the next several days, the Commissioner held unsatisfactory and ill-tempered meetings with irate residents and even more irate night spot owners.

The politicians washed their hands of it and said it was a police matter.

Eventually, the businesses all applied for and obtained permits setting out the hours when amplified music could be played.An uneasy calm returned to Sandy Ground.

In my opinion, none of this is satisfactory.

What the residents asked for has still not been done.No rules have been laid down establishing “reasonable and specific levels of noise”.No rules have been laid down establishing “reasonable and specific hours of operation in Sandy Ground”.It all lies in the hands of the Commissioner.He may well be a fair man, but who says he is an expert in what is reasonable when it comes to entertainment spots in Sandy Ground?Neither the residents nor the business places are happy with this situation.

Without regulations, the police will never know whether a complaint of unreasonable noise is justified.They have no authority to test for decibels.Certainly, they have no authority under this law to impose a permit for the playing of a reasonable level of amplified noise.

The conclusion must be that the law that is being enforced is inadequate to achieve what either the legislators or the administrators intend. The law is being implemented in a way that is outside the bounds.The government are inviting a suit for maladministration.

The moral of the story?If there is one it is this.You cannot run a country on inadequate, badly drafted laws.A rough skeleton of a law, which is clearly meant to work through detailed regulations should have the regulations made.A skeleton regulatory law, with no provision for detailed regulations to be made, cannot be made to work fairly on its own.

When you leave the discretion on how to make such a law work up to a single individual, you are inviting accusations of bad government, and worse.

20 March, 2008

It Is not Illegal to Own a Pit Bull.I was told to read the Dogs Act of Anguilla.I learned a number of things I did not know before.I am telling you now, so you cannot say you did not know.First, the good news.It is not illegal to own a pit bull in Anguilla.Now, the bad news.Practically anything else you can do with one involves an offence, if the authorities can get the evidence.

Section 8 reads as follows:

Prohibition on breeding of pit bull terrier

8. (1) It is prohibited to breed or breed from, give, sell, exchange or gift, any dog of the type known as the pit bull terrier or other dog of a type which is bred for fighting or which has the characteristics of a dog so bred.

(2) Any person who contravenes this section shall be guilty of an offence and liable on summary conviction to a fine of $4,500.

(3) Where a person is convicted of an offence under this section, the court may order the destruction of any dog in respect of which the offence was committed.

As I read that section, it means that it is an offence to breed a pit bull.It is illegal to give one away.It is illegal to sell one.If you do any of these things, you commit an offence the fine for which is up to $4,500.00.

Section 17 also applies to pit bulls.It reads as follows:

Ferocious dogs

17. (1) No person shall import any dog of the type known as the pit bull terrier or other ferocious dog and any dog so imported shall be seized and forfeited to the Crown, unless the person who imports the dog proves to the satisfaction of the Chief Veterinary Officer that the dog is not of a type known as the pit bull terrier or is not a ferocious dog.

(2) Every person who keeps a dog of the type known as the pit bull terrier or a ferocious dog shall have the dog spayed or castrated in a prescribed manner by an approved veterinary surgeon and produce the certificate to the Director when applying for a licence in respect of that dog.

(3) The keeper of a dog of the type known as the pit bull terrier or a ferocious dog shall not allow such a dog to be in a public place without being muzzled and kept on a lead or abandon it or allow it to stray.

(4) No person shall suffer to be at large any unmuzzled dog of the type known as the pit bull terrier or ferocious dog.

(5) Any person who contravenes the provisions of this section shall be guilty of an offence and liable on summary conviction to a fine of $10,000.

(6) Where a person is convicted of an offence under subsection (3) or (4), the court may order the destruction of any dog in respect of which the offence was committed.

As I read the above, it is an offence to import a pit bull.The importer commits an offence.It is an offence to allow it to be in a public place without wearing a muzzle.Every pit bull on Anguilla is required to be spayed.If you own a pit bull which is not spayed, you commit an offence.If you allow it to go into a public space without wearing a muzzle, you commit an offence.The penalty for any of these offences is a fine of up to $10,000.00.

This law is now several years old.That means that most pit bulls in Anguilla should be dying out from old age by now.Breeding is illegal.There can be no young pit bull on Anguilla which has not been involved in the commission of a crime.

Not that any of the above matters.The law is a joke when it comes to enforcing compliance.It is not an offence to receive a pit bull as a gift.It is not an offence to purchase a pit bull. It is not an offence to own a pit bull.Without me giving evidence, it is impossible for the authorities to prove who sold it to me, or gave it to me.

The one thing they can prove is that I own it or have it in my possession.That is the one thing that is not an offence.

18 March, 2008

It is not Asking too much for Ministers and Members of the House of Assembly to Disclose their Assets and Income to the Public.This obligation exists in the law of every advanced democracy.In the West Indies it remains a touchy area.Few West Indian countries oblige Ministers and parliamentarians to fully and publicly disclose their assets.Our Constitutions usually suggest that laws will be passed to regulate such disclosures.Our Constitutions say that Ministers must disclose to Governors and such.Members of the House must disclose to the Speaker.But, only after a law is passed regulating how it is to be done.And, nowhere is there a hint that the disclosure will be published to the people.It will be kept secret by the Governor and the Speaker.Not that this secrecy matters in practice.Parliament usually forgets to pass the necessary law.The provision remains unenforceable.The Constitution remains an empty promise to the people.That is what happened in Anguilla.

No one knows how many sources of income exist for our elected officials.We leave it to their “honour and integrity” not to accept improper payments.We make no noise about the absence of disclosure and oversight.We accept the risk of abuse and impropriety.In my opinion, that makes our democracy not very advanced.It means that we Anguillians are Third World in our attitude to the need for the highest rectitude required of our representatives.I use the term “Third World” in the sense of meaning “backward, inept, lacking transparency, and subject to despotic rule”.

I read a recently published opinion on The Huffington Post.It was written by Thomas B Edsall.Quoting from his bio on the page, Edsall “is the . . . Joseph Pulitzer II and Edith Pulitzer Moore Professor at the ColumbiaGraduateSchool of Journalism”.Those are high qualifications indeed.He knows what he is writing about.This is what he says about the recently disclosed contribution by Hilary Clinton of the sum of $5 million to her presidential campaign expenses:

. . .the Clintons have earned over the seven years between 2001 and 2006, as documented in Mrs. Clinton's United States Senate and presidential financial disclosure reports-- a sum in excess of $45 million, not including the couple's earnings in 2007 or 2008.

Disclosure reports?Yes, US senators have to disclose their earnings and their assets.And, not just to the Speaker.The disclosure is to all the people.By clicking on the underlined words “disclosure reports” above, you can examine the reports for yourselves.So, in the USA, the figures are published for anyone to see.And, if you lie about it, you go to gaol.That is how seriously a democratic country takes the issue of rectitude in high public office.Does that mean that the US has eliminated all improper receipts of donations by elected officials?No, of course not.But, the US has made it much more difficult.And, risky.We in Anguilla have taken no steps at all to protect the public interest from the venality of our elected officials.Are we going to continue in the same pathway?Or, will we insist on proper safeguards in our new Constitution?Only the people can force the issue.

15 March, 2008

Integrity Legislation Does not Work by Itself.It is axiomatic that anti-corruption legislation is only effective when the public have had a major say in proposing and designing the solution.

“The framework must provide for the involvement of a wide range of people and interests in the formulation of prevention policies and their execution.In this way, various stakeholders become involved in the prevention process, and their own institutions — both within government and the private sector – can be mobilized in support of the (Anti–Corruption) Agency’s efforts.” (J. Pope.TI Source Book 2000 — Confronting Corruption: The Elements of a National Integrity System, Transparency International, 2000, p. 99).

Anguillians are crying out for a system that promotes good governance.Our present style of government is based on “who you know”.Who gets a scholarship, who gets free medical treatment, who gets to build too close to his boundary, who gets to vote, who gets a construction line, is determined by who you know.We do not have a culture of integrity and good governance in Anguilla.It has often been said that you can do anything you want to do in Anguilla, so long as you have the right “god father”.

We are not satisfied with that state of affairs.All Anguillians cry out that we want to see an anti-corruption culture institutionalized.We want our decision makers to be made accountable.We dream of the day when any transaction involving public money or public property will be able to withstand public scrutiny.We want all our public projects to reflect value for money.Where it does not, we want a system to quantify what value or benefit was illicitly gained and the person made to repay it to the public.

Given our limited human and financial resources, we are not asking for anything elaborate.We just want a simple, strong, transparent system that offers a guarantee of honesty and integrity in our representatives and their officials.

Any solution to our present problem should be acceptable to the society at large.No solution will work unless it can be implemented by members of the public taking action.

As a start to this process, there is the Register of Interests Bill.Our Speaker and the Members of the House of Assembly are presently looking at it.They have had a draft prepared by the Attorney-General.They have it under consideration.They may accept what the A-G drafted, or they may request changes.They are doing their best to come up with a law that will contribute to the public confidence in the behaviour of our elected representatives.Both the draft and the process they are following remain confidential.They are not shared with the public.Not surprisingly, we the public have questions about content, process and legitimacy.

The Members of the House do not seem to realise that without involving us the public at an early stage, whatever law they adopt is likely to lack legitimacy.If they do not share their work with us, the public, it will be viewed as essentially a futile piece of ineffective nation building.

By continuing to treat the draft Bill as a State secret, they are begging for allegations of indulging in window-dressing.

13 March, 2008

Teacher Helens’ Landscape Features. Anguillians of a certain age remember Teacher Helen. She used to teach geography at the High School. She was strong on landscape features. Recently, she was back on a visit. She remarked on Anguilla’s newest landscape features. I went out on Tuesday and took some photographs so you could see what she was talking about.

The above monument is what she was referring to. It shows one of the many new landscape features scattered along the roadsides around the island.

They are a major improvement on the old oil drums that used to be found outside every house. They can hold so much more garbage. But, if only they were collected more often. Or, if they were bigger, the better to hold the overflowing garbage. Do we have to drive along our highways and byways every week looking at these mounds of garbage around every corner?

Corito is the location of Anguilla’s landfill. It is the public dump. But, does unwanted garbage have to be dumped on the Corito road side? Why should Charlie Gumbs’ guests have to look at the above view every time they turn the corner to go down Charlie’s drive?

You drive along the road, and there are piles of rubbish just dumped on the side. You must have heard the tale. There was a land-fill expert visiting Anguilla. He asked a waitress in a restaurant, “What do you do with your garbage in Anguilla?” The reply was, “We do not have a problem with garbage. Visitors put it in rubbish bins; but, we Anguilllians just throw it out of our car window.” The photo above is the evidence.

Go down the Rendezvous Pond road. It is exactly opposite the Jeremiah Gumbs Highway in Blowing Point. At the end of the road, you will see where some of the good residents of Blowing Point throw their garbage. The Rendezvous Bay Pond is in the background of the photo above, with a pile of modern incidentals visible in the foreground. No doubt, some inhabitant of Blowing Point considered this would improve the view, or he would not have placed the pile there.

You do not have to go as far as the pond. The above photo was taken at the start of the road. It shows that it is OK to throw your garbage right in the middle of the village. Just in front of your neighbour’s house, if you want.

On the road to Cap Juluca Hotel, just as you leave the main road, there is a collection of garbage on the west of the road. It has been there for months. I have been checking each week to see if anyone will remove it. No, it just grows bigger and bigger.

Further down the Cap Juluca road, is the sight above. There is an even larger mound of garbage just off the eastern side of the road. It covers an area of about a quarter of an acre. It takes quite a lot of work to build up such a collection of garbage. It requires even more concentrated effort on the part of the relevant authorities to let this mountain of garbage grow from week to week, with no sign of a dent being made in it.

This is a different view of the same spot. It shows one of our premier locally-owned tourism destinations in the background. The owners have invested millions on this development. We have to hope that their guests do not come out of their rented accommodation and walk up the road. The above is the view they will be greeted with.

This is perhaps my favourite landscape feature. On the picturesque back road from South Hill to Long Bay, there is a magnificent view eastwards to Sandy Ground and Crocus Bay. As you can see, the scenery is livened up by bags of contemporary stuff artfully placed alongside the road by some of the more thoughtful residents of Long Bay. You are encouraged to stop for a moment and take a photo, as I did.

Send me your favourite photos of Anguilla's landscape features. Perhaps, we can do a follow up post?

11 March, 2008

Register of Interests Act.Our Attorney-General’s Chambers has finally produced a draft Register of Interests Act.Regular readers will know how long we have been asking for this to be done.The most recent was on 19 February.It all goes back to the Constitution.In particular, section 60A.This provides:

60A. (1) The Speaker shall maintain a Register of Interests in accordance with this section.

What is a register of interests, and why is it so important?When we are looking at parliamentarians and, especially, those who are appointed to public office, and speaking of a register of interests we are referring to a report made by the members of their financial interests.These include interests held in the name of a spouse or child or company.Requiring such a report is a completely useless exercise if the report is not made under penalty of perjury and required to be published for all who are interested to see.The official reason why this publication is important is said to be so we can see if a member has an interest which causes a conflict of interest with his public office.The unofficial reason is for us the members of the public to see if our representative is getting suspiciously rich as a result of his holding public office.This is usually a sign of corruption.We can take steps to have him prosecuted at best, or at the least ensure he is not re-elected to the House.

It is no use at all if the register of interests is not published.In England, members of the House of Commons are under an obligation to declare their financial interests, and these are published for all the public to check on.The House of Lords publishes its own Register of its members' interests.

When we get our Register of Interests legislation, will we take the same precautions as the UK did?

Will we demand strong and muscular legislation?

Or, will we be happy with keeping a guard dog with all its teeth pulled?

06 March, 2008

When is the Use of an Order in Council a Legitimate Method of Legislating for Anguilla? We have been considering the four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla. We are coming to an end now, as this is the last of my four posts on the subject.

It is worth reminding ourselves one last time that the general rule is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 says,

“Subject to the provisions of this Constitution, the Governor, with the advice and consent of the Assembly, may make laws for the peace, order and good government of Anguilla.”

That is the section of the Constitution that empowers our House of Assembly to pass a law. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent”. We may describe this as the “normal” way that laws are made.

The fourth extraordinary way in which the FCO can legislate for Anguilla is by the Order in Council. Orders in Council are very old. They were originally thought of as a residue of the “royal prerogative” power. In the struggles between the British Parliament and the Monarchy, some monarchs claimed a right to rule by royal prerogative. Parliament opposed that view. There was a Civil War over it in the 1640s. A King's head was cut off. Gradually, this power to rule by the royal prerogative has been reduced and restricted in Britain. It still remains, to a limited extent, in use in the Colonies. It is now mainly regulated by statute.

The Order in Council is found particularly in those Acts of Parliament that provide for British administration of overseas territories. The Anguilla Act 1980 of the British Parliament is an example of this type of legislation. The Act expressly permits the Secretary of State, acting in the name of the Queen, to make subsidiary legislation for Anguilla by way of an Order in Council. Section 1(2) of the Act provides,

“Her Majesty may by Order in Council make such provision as appears to Her expedient for and in connection with the government of Anguilla.”

The Order in Council has been described as Britain's “nuclear option” when it comes to legislating for a British Overseas Territory. The term “nuclear option” derives from nuclear warfare, and refers to the option of a country using nuclear weapons to defend itself. This is a drastic solution to any conflict. In military terms, it has never arisen since the Second World War. Since that time, it has been recognised as involving the possibility of mutual annihilation. In US constitutional dialectic, the term was first used by Senator Trent Lott to refer to the attempt by the presiding officer of the Senate to end a filibuster by majority vote. In the British Overseas Territories, it refers to the use by the FCO of an Order in Council to impose British government will on an Overseas Territory by what we used to call in the bad old days “imperial legislation”. A nuclear option is something never to be preferred. In our case, any form of unwilling imperial legislation would be a denial of our right to self-government. For an Order in Council ever to be passed without the consent of the people of Anguilla, the UK government would have to be willing to take a giant step backwards.

Imperial legislation, by way of an Order in Council, may always legitimately be used with the consent of the people. Generally speaking, such consent would be conveyed through the instrumentality of the government of the day. For example, in matters of international security, international aviation, international piracy, or trade with Serbia or Iraq in contravention of UN resolutions, it would be appropriate for a BOT government to signify consent to the UK government to pass the appropriate Order in Council. These matters do not directly impose on our liberties. No one in Anguilla would have any objection to the government of Anguilla consenting to the FCO legislating for us on such matters by way of an Order in Council. No objection was raised when it was in fact done. That is the positive side of the Order in Council. Let us now consider the negative side. This is when an Order in Council affecting our basic rights is passed without general information, consultation, and resulting consent. It used to be thought that no court in the West Indies or in England could intervene when an unjust Order in Council had been made. That was the nuclear option in its worst aspect.

It is arguable that the nuclear option, in this anti-democratic sense, no longer exists. It has now largely been destroyed by the Court of Appeal in the Chagos Islands Case. An Order in Council made under the Royal Prerogative is now, since that judgement, subject to judicial review. No one in Anguilla would have any problem with an Order in Council that was made with our express consent. Nor would we have any problem with an Order in Council made for us that complied with the restrictions in the judgement of the Court of Appeal.

The British government has appealed the Chagos Islands judgement to the House of Lords. The appeal will be heard later this year. No thinking person has any doubt that the House of Lords will dismiss the appeal. Arbitrary and unjust use of the Royal Prerogative can now be considered to be a dead letter in the British Overseas Territories as much as it is in Britain itself. It is fair to say that, from the date of this judgement, an Order in Council that were to be made without our consent, and against our wishes, and not evidently in our best interests, would be held by our court to be an abuse of power, illegal and unconstitutional.

During the 2006 Constitutional review process, no person made any recommendation to the Constitutional and Electoral Reform Commission proposing restrictions on the future use of the Order in Council. The Commission made no recommendations concerning the use of the Order in Council. The legitimate use of an Order in Council remains unobjectionable. More than that, it can be considered as a legislative mechanism now existing only for our use and benefit, as happened a few years ago with the abolition of homosexual offences and the death penalty. That story is not without some element of amusement, and is worth retelling.

Back in 1990, the FCO wanted the issues of homosexuality and the death penalty dealt with in the local Assembly. It was obvious to the FCO that this was the preferred method for updating and amending a local law. The problem that the FCO faced at the time, and that it was attempting to correct, was that it had been advised by its lawyers that the continuance of the offence of “buggery” on our statute book exposed the British people to contingent liability. The offence, they were advised, was contrary to the European Convention on Human Rights. The FCO was concerned that there was a risk that some injured homosexual, with this particular propensity, might sue them if he was prosecuted under local laws outlawing the practice. It was necessary for the FCO to be able to prove to Britain's European partners that there were no laws in Anguilla discriminating against anyone on the basis of their sexual preference. So, they put pressure on the local government to introduce a law in the Assembly, and to debate the issue, and to repeal the old buggery offence. Not on your life! There was no way that any Anguilla government was going to permit the topic of homosexuality even to be introduced into the Assembly. They downright refused to allow it. The solution was simple. They told the British, in effect, “You go ahead and abolish it for us. We will not object. We would prefer you did it for us. We do not want to be embarrassed by appearing in front of our people to be in support of homosexual practices. That will be the consequence of us advocating the abolition of the offence. It will be bad for us politically. But, you can go ahead and do it for us.” And, so was passed the Order in Council that did away with the offence of buggery. The same with the death penalty.

But, when it comes to the liberties and freedoms of Anguillians, it can be stated as a general proposition of constitutional law that no Order in Council affecting those liberties and freedoms may be consented to by any government of Anguilla without the agreement of the people of Anguilla. No government of Anguilla, for example, can validly consent to the FCO legislating for Anguilla by Order in Council to amend our Constitution without our prior knowledge and approval. Only the people can give this consent. That the FCO recognises this principle is clear. The FCO has repeatedly promised that no amendment to the Anguilla Constitution will be made unless it is satisfied that such proposed amendment has the consent and approval of the people of Anguilla. That is as it should be.

In conclusion, the proper use of the Order in Council is unobjectionable. It exists for our use and benefit. It is a great saver of time and energy when it comes to passing into law, for example, provisions that are highly technical and related to our international obligations that have been worked out by the international experts. There is no point in us duplicating all that work. We permit the Order in Council to be passed to save us the waste of duplication. That is its legitimate use.

I am fully conscious that in expressing my opinion on the four extraordinary methods retained by the FCO to legislate for us, and in repeadedly declaring that Anguilla is already fully internally self-governing, I may have stretched the strict constitutional boundaries. The matter is one for negotiation with the FCO. It is not up to us alone. An understanding has to be reached about its implementation. Nor is full internal self-government something that the FCO gives us. It is something that we do. It involves the way we think about ourselves and our rights and powers. The point that I am trying to make is that “full internal self-government” is a state of mind, a readiness for action, rather than a statement in a document. Regardless of what the document says, if our leaders can look a UK diplomat in the eye and say, “No, you are not going to pass that enactment for Anguilla until Anguillians have been informed, and have expressed their consent”, then we will have achieved “full internal self-government”. It is my submission that not one word in the present Constitution needs to be changed for us to achieve full internal self-government. You can change all the words that empower, and if we are not ready, we will have achieved nothing

05 March, 2008

The UK Parliament Can Pass an Act for Anguilla. This is the third post on the four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla. Let us remind ourselves again that the general proposition is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 is the operative provision. It says,

“Subject to the provisions of this Constitution, the Governor, with the advice and consent of the Assembly, may make laws for the peace, order and good government of Anguilla.”

That is the section of the Constitution that empowers the House of Assembly to pass a law for Anguilla. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent”. We may describe this as the “normal” way that laws are made. There are also some extraordinary ways in which laws can be made for Anguilla.

We have looked at the section 56 power of the Governor to legislate for Anguilla. We have also looked at the section 59 power of the FCO to disallow an Act lawfully passed by the House of Assembly of Anguilla. We have seen that they are completely out dated and inappropriate, and have no place in a modern Anguillian Constitution.

The third way that the British government can legislate for us is by the passage of a substantive law by the Parliament of the United Kingdom. An example of this mechanism at work is the Anguilla Act 1980. This is the law under which Britain took responsibility for administering the government of Anguilla. In that year, the Associated State of St Kitts, Nevis and Anguilla came to an end. It had existed since 1967, when Anguilla had rebelled and unilaterally seceded. With the ending of the Associated State, St Kitts and Nevis went into independence as a Federation of the two islands. Anguilla, which had been invaded by the British army in 1969, became Britain's newest, fully fledged Colony. The Anguilla Act was passed by the British Parliament with the approval of all Anguillians. No one is suggesting that there is any objection that can be made to it.

It is trite to say that Parliament is made up of politicians. All politicians are sensitive to issues that are politically advantageous and to those that are politically dangerous. The general feeling among those persons who made suggestions or contributions to the 2006 Constitutional and Electoral Reform Commission was that there was no way that the British Parliament would countenance passing into law today any statute for the administration of an Overseas Territory such as Anguilla without the assurance that the statute was approved and willed by the people of Anguilla. No one in Anguilla had any comment or suggestion to make adverse to the proper use of an Act of Parliament by the British to affect the laws of Anguilla. The Commission, therefore, made no recommendation concerning the passing of an Act for Anguilla by the British Parliament. None is appropriate at this time.

In earlier days, when a previous British Colony achieved independence, the British Parliament expressly relinquished the power to legislate for the now independent and sovereign nation. That relinquishment is one of the signposts of independence. So long as Anguilla remains a British Overseas Territory, it is inappropriate that we should request that the British Parliament similarly relinquish power to legislate for us.

However, it is not inappropriate for us to demand that the British Parliament should never again legislate for us except in two circumstances. The first is if we request it. If, for some presently inconceivable reason, we are not able to pass our own law on a particular subject, we could, just conceivably, request the British Parliament to do it for us. The second is where we do not first request that an Act be passed for us. It is conceivable that, in some presently unimaginable future circumstance, it may be necessary for Britain to make a law for our collective well-being without us having asked. If the bona fides of such a law were to be proved, a court would undoubtedly uphold the validity of such legislation by the Parliament of the “administering power” for the benefit of the Overseas Territory. That, after all, is part of what it means to be an “overseas territory”.

While we have no representation in the Parliament of the United Kingdom, we place reliance on the good sense and political sensitivity of British parliamentarians not to abuse their power to legislate for us except in exceptional circumstances. Until we have reason to believe otherwise. It would clearly be wrong for the British Parliament to pass an Act applicable to Anguilla without first consulting the Anguillians. It is simply not conceivable that they would attempt to do so at this time.

We also recognise that we have no business telling the British Parliament what it can and cannot do. Any rule on the passing of an Act by the British Parliament has no place in the Anguilla Constitution. That is a matter for the British, not for us. When we are ready for independence, we can inform the British that they are not permitted any longer to pass an Act relating to us. If they choose, as they frequently have in the past, they may enact a law that expressly limits their power to legislate for the newly independent country. In the meantime, we may legitimately say that the power of Parliament to pass an Act for Anguilla is an Anguillian legislative procedure. It occurs when we agree to it and when we find it more convenient or effective to have one of our laws passed by the UK Parliament.

04 March, 2008

The Power to Disallow an Act Passed by the Assembly. We are looking at the four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla.

We know that the general proposition is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 says,

“Subject to the provisions of this Constitution, the Governor, with the advice and consent of the Assembly, may make laws for the peace, order and good government of Anguilla.”

That is the section of the Constitution that empowers the House of Assembly to pass a law. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent”. We may describe this as the “normal” way that laws are made. However, as we have seen in the earlier post, it is not the only way. The FCO has reserved four other ways to make laws for us. They may be described as, (1) the section 56 power; (2) the section 59 power; (3) an Act of Parliament; and (4) the Order in Council.

We looked at the section 56 power in the last post. Let us now look at the second way in which the FCO can, in effect, legislate for Anguilla. This is found in section 59 of the Constitution. The section says that,

“Any law to which the Governor has given his assent may be disallowed by Her Majesty through a Secretary of State.”

This is a disallowance section rather than a law-making section. It is no less objectionable for all that. It enables the FCO, acting in Her Majesty's name, to block a law properly passed in our House of Assembly. We can be quite sure that Her Majesty has no interest in interfering in the making of Anguillian laws. Of all the Secretaries of State in the UK government, there is only one who has the slightest dealings with Anguilla. That is the head of the FCO, the Secretary of State for Foreign and Commonwealth Affairs.

So, section 59 permits the FCO to intervene after the Assembly has passed a Bill, after the Governor has signed it into law, and it has become an Act. He may “disallow” it. He may legislate for us by repealing a properly made Act of our parliament.

Highly objectionable as such a provision is, it is not a new one. It is a traditional colonial power. It has existed in colonial constitutions for hundreds of years. The power of disallowance had its usefulness in the days of the sailing ship. At that time, it was conceived that a colonial Assembly might in good faith pass an Act which, when the copy of it arrived in London several months later, might be found to be objectionable for some reason. So, it was considered a good precaution to have the power for the Secretary of State to disallow such Acts. In the old colonial days, the records are filled with examples of this happening. However, since we have all entered the electronic age, the need for this power is unlikely ever to arise again. It has never in modern times been used. The FCO now knows of every proposed Bill long before it is passed into law by the Assembly. It has plenty of time to send its comments to the A-G's Chambers. Long before the Bill gets to the House of Assembly, it can recommend amendments to the local draughtsman. There might be legitimate reasons for this. It might be necessary, for example, to ensure that the Bill complies with Britain's international obligations.

The retention of this supervisory provision, bedded as it is in the days of the sailing ship, is now an anachronism. Every person who addressed the Constitutional and Electoral Reform Commission on the implications of this section during the 2006 constitutional review was of the view that it should not continue into the future as part of the Constitution of Anguilla. It was universally objected to. The Commission, therefore, recommended at paragraph 133 of its 2006 Report as follows,

“The Commission recommends that it be removed”.

And, high time too! Either Anguilla is fully internally self-governing or it is not. Most Anguillians would be shocked to learn that there are some people who still believe that we are a “dependent territory”. A whole generation of Anguillians has grown up with the understanding that we are not dependent on Britain or anyone else. We take care of our own affairs. That includes making our own laws. With that in mind, we rely on our Attorney-General to keep in close touch with the latest thinking on the draughting issues that arise in his Chambers. It is his duty to ensure that we put the very best version of any proposed new law before the House of Assembly. If he fails, it is not a matter for the Secretary of State to try to correct the error by blocking a badly draughted law. He has one of his juniors point out the error to our draughtsman, and, if appropriate, and after discussion at Cabinet level, an amending Bill is introduced into the House of Assembly at the earliest opportunity. That is the proper way to deal with bad laws.

It is up to the legislature of Anguilla to legislate for Anguilla, and nobody else.